Of Traffic Tickets and Trusts

When it comes to commercial drivers and traffic tickets, the stakes are high and the rules are different. And the wills you draft should allow executors to create a supplemental needs trust. A pair of ISBA newsletters tell you why and how.

The ISBA publishes nearly 40 section newsletters on an array of topics. Together, the sections produce well over 200 issues each year and many hundreds of articles. Here are excerpts from two.

It costs $25 per year to join a section and receive the newsletter and all other benefits of section membership. You must be an ISBA member to join - to find out more and sign up, visit www.isba.org/sections.

"Six tips for assisting the commercial driver with a traffic ticket"

March 2013 Traffic Laws and Courts newsletter

While most of us consider driving a necessity, for truck drivers it's an economic imperative. "Drivers of commercial vehicles must receive good legal advice since their driver's licenses are their livelihoods," former criminal defense lawyer and current Moultrie County State's Attorney Jeremy J. Richey writes in the March ISBA Traffic Laws and Courts newsletter. Here's some of his advice for counseling commercial drivers about traffic tickets.

Higher standards for commercial drivers. "It is possible for a disposition to have no effect on a driver's non-CMV privilege but still trigger a disqualification of the driver's CDL," Richey writes. Beware the difference.

Supervision = conviction. "Supervision is considered to be a conviction for CDL purposes," Richey writes. "Supervision is only a non-conviction for the purposes of the driver's non-CMV privilege." Be mindful of that in your negotiations with the state's attorney.

Can you bargain down to an equipment violation? "If the State has charged your client with a serious traffic violation, consider asking the traffic prosecutor to amend the ticket to an equipment violation under 625 ILCS 5/12-101," Richey writes. "This offense will not affect CDL privileges and it is not a points-assigned violation (commonly referred to as a 'moving violation') for purposes of triggering a suspension or revocation of drivers' non-CMV driving privileges."

Can you appear on behalf of your driver? "Commercial drivers only make money when their vehicles are traveling down the road," Richey writes. "They also may get citations far from home. As such, commercial drivers do not like to appear in court if they can avoid it. The judges in your county may allow you to appear in court on your client's behalf with a written guilty plea." View the article at http://www.isba.org/sections/trafficlaw/newsletter/2013/03/sixtipsforassistingthecommercialdri.

"Every will needs a paragraph allowing for a supplemental needs trust"

April 2013 Elder Law newsletter

Your distraught client asks why his 35-year-old bipolar daughter no longer qualifies for SSI or Medicaid and has been warned to leave her Section 8 apartment.

When you get to the bottom of it, you learn that the client's recently deceased brother left $50,000 to each nephew and niece, making the daughter ineligible for key government benefits.

As sometimes happens with mental illness, the daughter's schizophrenia didn't manifest until later in life. Carl M. Webber and J. Amber Drew explain in the April ISBA Elder Law newsletter that "[a]ny beneficiary can become disabled at any time. A will speaks as of the future date of death and should protect beneficiaries who may become disabled during the time between the execution of the will and the death of the testator."

How to do it? "In all cases, a will should include a paragraph that allows the executor to set up Supplemental Needs Trusts, if, at the time of the death of the testator, any beneficiaries qualify under the Social Security Administration's definition of 'disabled,'" they write.

"This requirement is in addition to the more traditional inquiry into whether any beneficiaries have any then current disabilities, which often results in the need to incorporate a Supplemental Needs Trust in the estate plan," they continue. "All estate planning client-intake forms should elicit information about existing supplemental needs issues." The article includes a sample trust provision. View it at http://www.isba.org/sections/elderlaw/newsletter/2013/04/everywillneedsaparagraphallowingfor.